Citation Nr: 1802468 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 12-02 719 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disability. REPRESENTATION The Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and her spouse ATTORNEY FOR THE BOARD M. Galante, Associate Counsel INTRODUCTION The Veteran has active service from January 1979 to March 1980. This appeal comes to the Board of Veterans' Appeals (Board) from an October 2010 rating decision by the United States Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In November 2015, the Veteran and her spouse appeared and provided sworn testimony before the undersigned Veterans Law Judge at a Travel Board hearing. A transcript of that hearing has been associated with the Veteran's electronic claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on her part. REMAND This matter was previously before the Board in May 2016, at which time it was remanded to obtain updated VA medical records, the Veteran's military personnel records, and a VA examination assessing the Veteran's current psychiatric diagnoses and an etiological opinion on whether any of the identified diagnoses were related to her active duty service. The AOJ promptly obtained updated VA medical records and the Veteran's military personnel records. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran underwent a VA examination in July 2016, at which time she was diagnosed with "unspecified depressive disorder." After reviewing the Veteran's electronic claims file and interviewing and examining the Veteran, the VA examiner concluded "it is less likely as not that the Veteran's diagnosed psychiatric disorder began during, or was otherwise caused by her active duty service." The VA examiner did not support this medical opinion with any rationale, as required by controlling law. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) ("[A] mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion."). Consequently, the Appeals Management Center referred the matter to another VA examiner for an addendum medical opinion. In October 2016, a separate VA examiner reviewed the electronic claims file, including the July 2016 VA examiner's report, and provided the following opinion: The Veteran was discharged from military service in 1980. There was no treatment for mental health issues while on active duty. Her first treatment on record for any mental health symptomatology was almost 30 years after her discharge. The Veteran claims her symptomatology is related to her military service but there is no supporting evidence to establish such a connection. In her examination report [the July 2016 VA examiner] stated: "After reviewing the records and interviewing the Veteran, it is the opinion of this evaluator that it is less likely as not that the veteran's diagnosed psychiatric disorder began during, or was otherwise caused by, her active duty service." There is nothing that this examiner has been able to find in the record that would indicate that [the July 2016 VA examiner]'s conclusions were inaccurate. There is no way for this examiner to establish any connection between her recent mental health symptomatology and her military service without resorting to speculation. In a December 2017 written brief, the Veteran's representative argued that the July 2016 VA examination, with its October 2016 addendum opinion, was inadequate for adjudication purposes and requested a new VA examination before a different examiner. Having reviewed the record, the Board agrees that the VA examination reports contain insufficient rationales to justly adjudicate this appeal. Barr v. Nicholson, 21 Vet. App. 303 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate.). The October 2016 VA examiner offered a negative nexus opinion solely on the basis that the Veteran's first mental health treatment began almost 30 years after her military discharge. This rationale is inadequate as it relies solely on the passage of time between service and the Veteran's diagnosis/treatment, and does not address the facts of the Veteran's case in the context of medical principles. The October 2016 VA examiner's statement that he could not establish any connection between the Veteran's current psychiatric disorder and her military service without resorting to speculation is inadequate because the examiner neither provided a rationale for this conclusion, nor stated what additional evidence, if any, would permit an informed opinion to be made. Finally, both VA examiners failed to give adequate consideration to the Veteran's lay statements relaying her subjective belief that her current psychiatric disorder is the result of in-service racial harassment. Given these inadequacies, the Board remands this matter to the AOJ for a new VA examination with a new examiner. At the November 2015 Travel Board hearing, the Veteran testified that she is no longer receiving current mental health treatment. Pursuant to the Board's May 2016 remand, the AOJ obtained VA treatment records through September 2014. Accordingly, the Board finds there are no additional outstanding medical records to be obtained on remand. If there has been a change in the Veteran's circumstances and she has returned to mental health treatment, she is encouraged to submit her treatment records or request the AOJ's assistance in obtaining relevant evidence. Accordingly, the case is REMANDED for the following action: Schedule the Veteran for a VA psychiatric examination before a new VA examiner to assess the etiology of the Veteran's diagnosed unspecified depressive disorder. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current unspecified depressive disorder had its onset during the Veteran's active duty service or is otherwise etiologically related to her active duty service. The examiner is requested to review the Veteran's electronic claims file, including this REMAND, prior to the examination, and such review must be noted in the examination report. The examiner is requested to consider the Veteran's credible reports of in-service racial harassment and discuss in the examination report whether this harassment is related to her current psychiatric disorder. Any psychological testing deemed necessary by the VA examiner should be accomplished. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner must explain why this is so, and note what, if any, additional evidence would permit an opinion to be made. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).